Tinder v. Music Operating, Inc., 29476

• Citation: 237 Ind. 33,142 N.E.2d 610
• Decision Date: 02 May 1957
• Docket Number: No. 29476,29476
• Parties: John TINDER, as Prosecuting Attorney of the 19th Judicial Circuit, His Deputies, Investigators and Assistants, Robert A. O'Neal, Sheriff of Marion County, His Deputies, Investigators and Assistants, Frank A. Mueller, Chief of Police of the City of Indianapolis and All Members of the Police Department of the City of Indianapolis, Phillip L. Bayt, Mayor of the City of Indianapolis, Appellants, v. MUSIC OPERATING, Inc., a Corporation, Appellee.
• Court: Supreme Court of Indiana

Page 610

142 N.E.2d 610

237 Ind. 33

John TINDER, as Prosecuting Attorney of the 19th Judicial Circuit, His Deputies, Investigators and Assistants, Robert A. O'Neal, Sheriff of Marion County, His Deputies Investigators and Assistants, Frank A. Mueller, Chief of Police of the City of Indianapolis and All Members of the Police Department of the City of Indianapolis, Phillip L Bayt, Mayor of the City of Indianapolis, Appellants, v. MUSIC OPERATING, Inc., a Corporation, Appellee.

No. 29476.

Supreme Court of Indiana.

May 2, 1957.

Asa J. Smith, Andrew Jacobs, Michael B. Reddington, John J. Dillon, Indianapolis, for appellant.

John A. Royse, Howard P. Travis, Indianapolis, for appellee.

ACHOR, Chief Justice.

This is an appeal from a permanent injunction issued against the appellants, restraining them from interfering with the installation or operation of appellee's pinball machines in the city of Indianapolis.

Appellee maintained its action upon the theory that pinball machines of the type owned by appellee, which granted only an immediate right of replay, are expressly excluded from the application of the socalled Hasbrook Law, Chapter 265 of the Acts of the Indiana General Assembly, 1955 (being §§ 10-2329-2336, Burns' 1956 Repl.), which act is concerned with the crime of gambling and provides penalty therefor. The exemption to the act, relied upon by appellee, is contained in Section 28 subsections (3) and (4) of the Act, and is italicized by us in the recital thereof, as follows:

'(3) 'Professional gambling' means accepting or offering to accept, for profit, money, credits, deposits or other things of value risked in gambling, or any claims thereon or interest therein. Without limiting the generality of this definition, the following shall be included: pool-selling and bookmaking; maintaining slot machines, one-ball machines or variants thereof, pinball machines which award anything other than an immediate right of replay, roulette wheels, dice tables, or money or merchandise pushcards, punchborards, jars or spindles, in any place accessible to the public; and conducting lotteries, gift enterprises, or policy or numbers games, or selling chances therein; and the following shall be presumed to be included: conducting any banking or percentage games played with cards, dice or counters, or accepting any fixed share of the stakes therein.

'(4) 'Gambling device' means any mechanism by the operation of which a right to money, credits, deposits or other things of value may be created, in return for a consideration, as the result of the operation of an element of chance; any mechanism which, when operated for a consideration does not return the same value or thing of value for the same consideration upon each operation thereof. But in the application of this definition an immediate right of replay mechanically conferred on players of pinball machines and similar amusement devices shall be presumed to be without value.' (Our emphasis.) (§ 10-2330, supra.)

The issues were finally joined by appellants' answer to appellee's complaint and supplemental paragraph of complaint. But prior to the filing of said answer appellants Bayt and Mueller filed a motion to dismiss on the grounds that the statutory provision relied upon by appellee was unconstitutional. This motion was overruled by the court. Also, prior to the filing of the answer by appellants, a demurrer was filed by appellant Tinder and overruled by the court.

The errors assigned and urged by appellants in this appeal are as follows:

(1) The overruling of appellants' motion to dismiss.

(2) The overruling of appellants' demurrer.

(3) The overruling of appellants' motion for a new trial.

In support of their motion to dismiss, appellants contend that the above quoted sections of the act relied upon by appellee in its complaint were unconstitutional for the following reasons:

(1) That the exception in said act which permits the conferring of free replays on pinball machines is inconsistent with the general subject matter of the act, not expressed in the title.

(2) That the said provisions which except pinball machines that mechanically confer a right of immediate free replay from the gambling laws of the state constitutes a special law as to such provision.

(3) That said exception allowing replays on pinball machines is violative of Section 8 Article 15 of the Constitution of Indiana prohibiting lotteries.

The demurrer of appellant Tinder stated the follow reasons as grounds therefor:

'1. That the Court has no jurisdiction of the persons of the defendants or the subject matter of this action.

'2. That the complaint does not state facts sufficient to constitute a cause of action.'

The cause was submitted and the court later rendered a permanent injunction against the appellants as follows:

'It is Therefore Considered and Adjudged by the Court that the defendants John Tinder, Prosecuting Attorney, his deputies, investigators, and assistants, Robert A. O'Neal, Sheriff of Marion County, his deputies, investigators, and assistants, and Frank A. Mueller, Chief of Police of the City of Indianapolis, and all members of the Police Department of the City of Indianapolis be and they are hereby perpetually enjoined from interfering with plaintiff's business and the business of all owners and lessees of pinball machines located in Marion County, Indiana, and especially in the business of leasing, maintaining, and operating pinball machines, and from arresting, coercing, or in any manner whatsoever intimidating the owners, operators, or employees of locations where said pinball machines are now located or may hereafter be located in Marion County, Indiana, and from seizing, confiscating, or in any manner whatsoever taking into their possession the aforesaid pinball machines or interfering with the plaintiff or all owners and lessees of pinball machines in the conduct and operation of their business of leasing, distributing, and possessing pinball machines as above described in Marion County, Indiana.'

We first consider appellants' contention that the operation of pinball machines constitutes a lottery within the meaning of Art. 15, § 8, supra, and that the ownership and operation of such machines is unlawful regardless of the exceptions contained in the act. Article 15, § 8, supra, provides: 'No lottery shall be authorized; nor shall the sale of lottery tickets be alowed.'

What is lottery? The courts of Indiana have placed no other interpretation on the word 'lottery' than its commonly accepted meaning, defined in Webster's New International Dictionary, as follows: 'A scheme for the distribution of prizes by lot or chance; esp., a scheme b which one or more prizes are distributed by chance among persons who have paid or promised a consideration for a chance to win them, * * * A game in which prizes are given from a pool to holders of cards matching others reserved for that purpose.' Lotteries are a species of gaming, and, although lotteries are gambling, not all forms of gaming or gambling are lotteries. State v. Village of Garden City, 1953, 74 Idaho 513, 265 P.2d 328.

Appellant cites the fact that there are three essential elements to a lottery, namely, consideration, chance and prize, State v. Village of Garden City, supra; State v. Coats, 1927, 158 Or. 102, 74 P.2d 1120; Id., 158 Or. 122, 132, 74 P.2d 1102, and that all these elements are present in the operation of the pinball machines of appellee's. Appellant cites the fact that numerous cases from other jurisdictions support the proposition that the operation of pinball machines may constitute a lottery. ¹

However, we submit that in none of the above cases is the operation of the machines analogous to those involved in this case. In a lottery the winning of a prize is dependent primarily, if not solely, upon chance. In none of said cases was the prize dependent upon the skill or manipulation of the player. This is a significant factor not contemplated in a lottery. However, in the operation of the machines with which this case is concerned, skill is a predominant factor in determining the award of a prize. These machines are equipped with 'flippers,' by which the player controls the play of each ball. In fact, the conferring of a prize (free play) is improbable unless the player can operate these flippers with a considerable degree of skill. This distinction is recognized in the case of State v. Coats, supra, in which the element of skill did not exist. In that case the court stated: '* * * If any substantial degree of skill or judgment is involved, it is not a lottery. * * *'

We next consider appellants' contention that the 1955 Hasbrook Law's exception of appellee's type of machines from the definition of 'gambling devices' is class legislation in violation of Art. 1, § 23, ² and a special law in violation of Art. 4, § 22, subsec. 2, ³ and § 23, ⁴ of the Constitution of Indiana. Appellants have cited numerous cases in support of their position. ⁵ However, in none of the cases cited by appellant in support of their position are the facts analogous to those here presented, nor does the reasoning of those cases require the result asserted by appellant.

In determining the validity of a classification, the court will, in every case, look behind the thing legislated upon and decide the issue on the basis of whether or not its purpose is reasonable and treats all members within the class alike. For example, in the case of Schmitt v. F. W. Cook Brewing Co., 1918, 187 Ind. 623, 120 N.E. 19, 3 A.L.R. 270, the court held that Chapter 4 of the Acts of 1917, which prohibited the manufacture, sale, gift, advertisement or transportation of intoxicating liquors, was not void because it gave the right to registered pharmacists to deal in intoxicants for medicinary purposes. The decision was based upon the fact that a reasonable distinction inhered to the purposes or uses to which the intoxicating liquors were...